FEDERAL COURT OF AUSTRALIA

SHJB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 502

Migration Act 1958 (Cth) ss 101, 108, 109

Judiciary Act 1903 (Cth) ss 39B, 474

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1 cited

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 cited

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 cited

Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 cited

SHJB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 407 OF 2003

SELWAY J

22 MAY 2003

ADELAIDE

THE COURT ORDERS THAT:

1.         The application for judicial review is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant is seeking judicial review of the decision of the Refugee Review Tribunal (‘the Tribunal’) affirming that the applicant’s temporary protection visa should be cancelled.  The reason for cancellation was that the applicant had not correctly answered the questions on his application form.  The applicant had claimed that he was from Afghanistan.  The Tribunal found that he was, in fact, from Pakistan.  The issue on the judicial review proceedings is whether there was any jurisdictional error by the Tribunal in reaching its decision.  For the reasons given below I conclude that there was no jurisdictional error and the application for judicial review must be dismissed.

Background

2                     The applicant arrived in Australia on 22 October 1999.  He was then an ‘unlawful non-citizen’ for the purposes of the Migration Act 1958 (Cth) (‘the Act’) and he was taken into detention.  He lodged an application for a protection visa on 29 May 2000 (‘the application’).  He was granted a temporary protection visa on 3 August 2000, which allowed him to remain lawfully in Australia until 3 August 2003.

3                     Section 101 of the Act imposes an obligation upon an applicant to answer the questions in the application correctly. 

4                     In the application the applicant claimed that his nationality was Afghani and that he was born in Charkh, Shareston province, Afghanistan.  He claimed that he was a farmer.  The applicant also stated that his wife and children, his mother and his brothers were Afghani nationals, although they were no longer living in Afghanistan.  The applicant’s claim was accepted and the temporary visa was issued on the basis that he was an Afghani national who had a reasonable fear of persecution if he returned to Afghanistan.

5                     On 12 April 2001, the respondent, through his officers, issued a notice to the applicant under s 107 of the Act.  The notice claimed that the applicant had not complied with the obligation under s 101 of the Act to correctly answer the questions in the application.  The notice alleged that a number of answers given by the applicant were incorrect.  In particular, the notice provided that:

‘Information has been received by this Department to indicate that you have not complied with section 101 of the Migration Act 1958.  It has been alleged that you are a plumber and electrician and that you are from Quetta, Pakistan.  Several sources have confirmed this information and have identified you as Pakistani.’ 

The applicant was asked for his comments and responses and was warned that his visa could be cancelled.  Further information was provided to the applicant by letter dated 25 October 2002.  The applicant was represented and there was considerable correspondence between his legal advisers and the Department.

6                     On 4 December 2002, the Minister’s delegate determined pursuant to s 108 of the Act that the applicant had not complied with his obligations under s 101 of the Act.  The delegate then determined pursuant to s 109(1) of the Act that the applicant’s temporary protection visa should be cancelled.  Section 108 and s 109(1) of the Act provide:

‘108     The Minister is to:

(a)       consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

(b)       decide whether there was non-compliance by the visa holder in the way described in the notice.

109(1)The Minister, after:

(a)       deciding under section 108 that there was non-compliance by the holder of a visa; and

(b)       considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and

(c)        having regard to any prescribed circumstances;

may cancel the visa.’

7                     The applicant applied to the Tribunal to review the delegate’s decision.  The Tribunal considered the material that had been before the delegate and the further material that was provided by the applicant through his legal advisers.  The Tribunal gave its decision on 4 March 2003.  The Tribunal affirmed the decision to cancel the applicant’s temporary protection visa.

Application for Judicial Review

8                     On 27 March 2003, the applicant issued proceedings in this Court.  The applicant is now unrepresented.  The documents filed by the applicant do not assist in identifying either the jurisdiction of this Court or the grounds on which the proceedings are brought.  However, Ms Maharaj, who appeared for the respondent, informed me that the respondent accepts that the proceedings are instituted pursuant to s 39B of the Judiciary Act 1903 (Cth) and that the applicant is seeking certiorari, mandamus and prohibition against the respondent. 

9                     The jurisdiction of the Court under s 39B of the Judiciary Act 1903 (Cth) is subject to the limitations in the Migration Act 1958 (Cth).  In particular, it is subject to s 474 of the Migration Act 1958 (Cth).  In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1 (‘S134’) and Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 (‘S157’) the High Court ‘read down’ the otherwise broad terms of s 474.  In light of those decisions,the jurisdiction of this Court in relation to judicial review of the decisions of the Tribunal is limited to ‘jurisdictional errors’ (S157 at [76]).  In determining whether or not a particular error is a ‘jurisdictional error’, it is necessary to have regard to the whole of the Act, including s 474 (see S157 at [77]-[78]).

10                  The issue before me is whether there is any jurisdictional error in the reasoning or decision of the Tribunal.

11                  In reaching its decision in this case the Tribunal properly noted that it was required to be positively satisfied that there was non-compliance with the obligation to answer the questions correctly.  The Tribunal then analysed the material before it.  It relied upon the following material:

(a)                Information from official sources in Pakistan revealing that a family with the same name as the applicant and with various other details very similar to those of the applicant and his family, were Pakistani citizens from Quetta, Pakistan;

(b)               Information from Dr Watt, a ‘forensic anthropologist’, who claimed an expertise in being able to identify persons through the comparison of facial features from photographs.  He described this process as ‘facial mapping’.  Dr Watt claimed that that the applicant was the same person as the person in a photograph obtained from the official sources in Pakistan;

(c)                Information from a ‘reliable source’ living in Australia who claimed to know the applicant and who said that the applicant was a plumber and electrician from Quetta, Pakistan;

(d)               Information from various Australian newspapers which had investigated the claims made by the applicant.  Those investigations included interviews made in Quetta, Pakistan with persons who claimed to know the applicant and who identified him as a Pakistani from Quetta.  They also included interviews of persons from the village of Charkh in Afghanistan (the village that the applicant claimed to come from) who did not know of the applicant;

(e)                Information from linguistic experts that the applicant was from Pakistan, not Afghanistan.

12                  The Tribunal rejected some of the material put forward by the applicant.  This consisted of the applicant’s own statements and evidence before the Tribunal, letters from two Afghanis (Messrs Rezaee and Kamali) claiming that they knew the applicant in Afghanistan and a letter from the District Governor of the Wahdat Islamic Party in the District of Shareston in Afghanistan stating that the applicant and his family are from Afghanistan.

13                  The Tribunal did not apply or adopt some other evidence and arguments put forward by the applicant.  This included a detailed criticism of the use of linguistic evidence in this and similar cases.  It also included a statement by Dr Kemp, a psychologist who has studied ‘facial mapping’.  Dr Kemp was critical of the methodology of ‘facial mapping’ both generally and in this particular case by Dr Watt.  His criticisms do raise significant concerns, particularly in the absence of any opportunity for Dr Watt to respond to them.  Nevertheless, the Tribunal (like the delegate) accepted Dr Watt’s evidence on the basis that:

‘Although the forensic value of Dr Watt’s report was questioned by Dr Kemp who concluded there must be some uncertainty regarding the validity of the conclusions reached by Dr Watt, Dr Kemp did not find or conclude that the person in the photographs submitted was not the same man or that the conclusion reached by Dr Watt was wrong.  …[It] is significant that although he referred to “some uncertainty” he did not contradict Dr Watt’s conclusions that the person in the photographs was the same person, namely the applicant.’

Of course, as Dr Kemp’s evidence was that the methodology of ‘facial mapping’ did not enable Dr Watt or anyone else to say with certainty that two photographs were of the same person it was hardly likely that he would himself engage in the very process of identification that he criticised in relation to Dr Watt.

14                  The applicant appeared before me assisted by a translator.  Essentially he put to me that the Tribunal was in error in concluding that the applicant was a Pakistani. 

15                  Ms Maharaj for the respondent submitted that even if there were errors in the reasoning of the Tribunal none of these constituted a ‘jurisdictional error’.  In particular, Ms Maharaj submitted to me that if there were any errors, they were errors of fact, or errors in factual reasoning and analysis, and these were errors that were within the jurisdiction of the Tribunal.

16                  I have considered all of the matters put to me.  The relevant principle is clear enough.  Notwithstanding whatever concerns I may have about the reasoning of the Tribunal in analysing the factual material before it, the assessment of that material was a matter for the Tribunal, not for this Court.  The applicant has asked the Court to undertake a review on the merits of the decision of the Tribunal.  The Court has no jurisdiction to do so. As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146]:

‘A tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999) 197 CLR 611]…at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ with whom Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Roads Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543 (FC)…I agree with the remarks of Katz J in Zuway [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal.’ 

This needs to be qualified at least to the extent that where the factual conclusion is so unreasonable that no reasonable person acting within jurisdiction and according to law could have reached it then there may be jurisdictional error: see Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 at 230; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [39]-[53], [100]-[103], [122]-[147], [183]-[194].  However, there is no such error in this case, whatever might be thought of the analysis by the Tribunal.  Plainly there was material before it that justified its conclusion.  Whatever might be said about the reasoning of the Tribunal there is no basis for doubting its conclusion.  It certainly could not be said that the conclusion is so unreasonable that no reasonable person could reach it.

17                  Having concluded that the applicant was not from Afghanistan, but instead was from Pakistan, the conclusion by the Tribunal that the temporary visa should be cancelled was almost inevitable.  If the correct information had been given in the application as is required by s 101 of the Act it would seem clear that the applicant would never have been granted a visa in the first place.

18                  In the absence of any jurisdictional error in the reasoning or decision of the Tribunal, the application for judicial review must be dismissed.  I will hear the parties as to costs.

Associate:

Dated:              22 May 2003